Raymond’s Call for Replacement of Scharlemann

There are several matters that I wish to bring to the CoC’s attention regarding the Charges Officer’s conduct in this matter.

1. The Procedures adopted by the Charges Officer significantly diminished the transparency of the formal complaint process, and effectively excluded the accused professor’s participation in it.

The Charges Officer did not follow the relevant protocol following his receipt of a complaint from 2 students. He bypassed relevant options for seeking an informal resolution of the matter before seeking to form an ad hoc committee, and, more critically, his departures from steps laid out in the Faculty Code of Conduct (hereafter FCoC) effectively prevented the accused from meaningfully participating in the process.

A. In the faculty code of conduct it states that the charges officer has the option of referring a complaint to the Department Chair or the Dean (Faculty Code, revised, section 4 — on pg. 2) before forming an advisory committee; In my discussions with the Chair of Sociology, I have been assured that neither she, nor the dean, was contacted by the Charges Officer regarding this matter in an effort to resolve the complaint, nor was their input sought.

B. The Charges Officer’s significantly departed from the sequences of steps prescribed in the faculty code of conduct. As a consequence, his communication with the faculty member in question has been so garbled that it made his participation in the process literally impossible.

C. Instead of following the specific procedures outlined in the code of conduct, the Charges Officer solicited a written declaration from the faculty member before he had reached a decision to form an ad hoc committee. Since the faculty code of conduct makes clear that a written response should be solicited after an ad hoc committee has been formed, and after the faculty member has been informed of the specific charges against him, the faculty member in question could not know where he was in the process, and therefore could not adequately respond to the
Charges Officer’s request.

D. Specifically, the charges officer solicited a written response in late February or early March, following his forwarding of two letters containing complaints from students who were briefly enrolled in the accused faculty member’s course. The charges contained in the student letters were copied straight from the FCoC; they included a long list of charges copied from it (including those against romantic relations with students, despite the fact that the professor had never met the students in question, and charges against the use of university property for commercial gain, which have no bearing whatsoever on the case.) See Appendix 2 for the precise list of charges made by the students.

E. Given the scattershot character of these charges, and especially the inclusion of utterly irrelevant matters in them (e.g., the bizarre charge that the professor violated his own right to present controversial material) the professor could not reasonably respond to them — except to ask the Charges Officer to clarify what charge(s) he was actually confronting.

F. Despite repeated requests for clarification, the charges Officer declined to indicate the specific nature of the charges, in violation of the Faculty Code of conduct (see below). In fact, the Charges Officer only conveyed the specific charges to the faculty member on April 3, 2009.

G. Without a specific charge to confront when the Charges Officer requested a written response, the faculty member was provided with no reasonable opportunity to respond. Confounding matters, once the Charges Officer actually supplied specific charges on April 3, he claimed that the faculty member would no longer be permitted to respond (at any point in the process) since he had passed on a prior opportunity to do so.

H. The Charges Officer confirmed this sequence of events. On April 3, he wrote to the faculty member: “And yes, I did offer you an opportunity “if you wish” to provide a written response to the complaint before I met with the Charges Advisory Committee, which is solely vested with the authority to dismiss a complaint as frivolous and unfounded.” (Evidently the latter point is not true; the ad hoc committee can also find that allegations, even if true, would not violate the FCofC.)

Plainly such a convoluted procedure lacks transparency: the faculty member is asked to respond before any specific charges are made against him, and so he cannot respond. Once a charge is actually made against him, however, he is prevented from responding (on the grounds that he has had his “chance” already). It is a basic principle of justice that a person can defend him or herself only after specific allegations or charges have been made public. To request a defense in anticipation of charges constitutes a fundamental perversion of even the most flexible and informal forms of due process insofar as it allows subsequent charges to be crafted that do not relate to the defense on offer. (It is worth noting in this context that this is not an unfounded fear: the Charges Officer has actually added a charge — regarding the “coercion of conscience” — that does not appear
in any of the student complaints and so could not have been defended against had the professor responded to the laundry list initially presented in the letters.) In such a situation (where a risk of charges has been presented, but no specific or formal charges have been made) no reasonable person can or should offer a defense since any comments they provide can be used to facilitate the case against them. Because this sequence of actions (first charges, then defense) cannot be altered without undermining basic principles of fairness, they are encoded (in a numbered series of steps) within the faculty code of conduct itself (see page 4, under the heading “Formal Complaint Procedures”).

As these facts make clear, this is not merely a case in which the Charges Officer departed from procedure in an effort to resolve the complaint informally. Rather, his departure from procedure in the case so substantially altered the process that the accused faculty member could not meaningfully participate in it. Moreover, even though the lack of transparency in the process and its consequences were made clear to the Charges Officer, he repeatedly refused requests by the faculty member to clarify (1) the specific charges in the complaint and (2) where in the process they were. Despite repeated requests for clarification, the accused faculty received no answer from the Charges Officer until after the opportunity to respond had passed.

2. The procedure adopted by the Charges Officer in this case directly violated the rights of the accused as they are described in the Faculty Code of Conduct.

The Faculty Code of Conduct contains two very clear statements about the rights of the accused; the charges officer violated both of them. They are as follows (emphasis added):

On Pg. 1 “All such persons therefore have a legitimate interest in being able to make allegations against a faculty member in confidence, i.e. without the accused knowing that they have done so. This legitimate interest, however, cannot override the right of the accused to reply to accusations. This right requires that the accused know what he or she is charged with, and by whom.”

On pg. 2 “The accused faculty member, however, has the right to insist on a written statement of the complaint”

The Charges Officer repeatedly refused to provide the accused faculty member with (1) information about what, specifically, he was being charged with and (2) a written statement of the complaint. Instead, the Charges Officer merely forwarded the letters submitted by the students, even though his subsequent conduct confirms that he was aware of gross problems with those complaints.

That the Charges Officer was aware of the problematic character of the student complaints he forwarded is made clear in his subsequent conduct: he did not charge the faculty member with the list of charges forward by the students; instead, the actual charges he has proposed forwarding to the ad hoc committee depart from the student complaints in their (1) basic claims and (2) the aspects of the code purported to have been violated. The Students complaints were premised on the claim that accused sent an e-mail that expressed anti-Semitic views and that doing so violated many (but not all) aspects of the FCoC (see Appendix 2, which contains a list of the specific charges contained in the student complaint). The Charges Officer’s letter of April 3 contains no claim of anti- Semitism (or racism, or discrimination of any sort – because there was none) and specifies a different set of charges than were contained in the students’ complaint. (see Appendix 2, which contains a copy of this mail).

These differences are important facts for two reasons:

First, it suggests that the Charges Officer recognized that the actual complaints forwarded by the students were so overly broad that they could not be allowed to stand on their own as actual charges/complaints. Given this recognition, the Charges Officer’s repeated refusal to provide the accused professor with the specific charges relevant to the case amounts to a procedural violation of the accused professor’s right to know “what he is
being charged with”, and to have those charges presented in writing. Second, by (1) altering the substantive focus of the complaint (from a charge of anti-Semitism to a charge that the professor distributed “highly partisan materials in a class”) and (2) adding a charge not contained in either of the students complaints (i.e., the “coercion of conscience” charge), the Charges Officer has, in effect, become a co-complainant (a party to the complaint itself). This could have been avoided had he simply selected one or more charges from among the complaints made by the student while
finding that others were frivolous or ungrounded (as he is mandated to do). However the addition of a charge not contemplated in the students’ letters makes him a party to the complaint itself. Given that the students enumerated the specific violations of the faculty code of conduct that they felt were relevant, and they did not include a claim of coercion (despite naming violations before and after it) it seems reasonable to conclude that they did not feel they had been coerced or harmed in the manner described in the FCoC. We might ask, them, if the students do not claim that they were coerced, on what basis can the Charges Officer claim that they were? In no place does the FCoC, or the procedures described for handling complaints, contain a provision for the Charges Officer to add a charge.

These irregularities: (1) the charges Officer’s adoption of a set of procedures that effectively precluded the accused professor’s meaningful participation in it (by virtue of the specific manner in which they departed from the procedures established in the FCoC), (2) the Charges Officers conflation of his views and opinions with the complaining students as reflected in the addition of a charges not contained in the original student
complaint, and (3) his direct violations of the Faculty Code of conduct with respect to the rights of the accused, make any continued involvement of the Charges Officer in the case highly problematic. Based on these irregularities and the resulting lack of transparency, I would suggest that a new Charges Officer be selected to re-hear this case, and that a new advisory committee be formed so that the faculty member in question can meaningfully participate in the process. To continue this process after having been made aware of such gross irregularities would make the CoC, complicit in them.

3. The Charges Officer’s “investigation”:

In additions to the lack of transparency in the process adopted by the charges Officer, and his co-authorship of the complaint against the professor, he has engaged in other seriously problematic conduct that raise additional questions about the manner in which he handled the students’ complaints. As context for this discussion I would remind the committee that the FCofC (and the procedures described for handling formal complaints) does not empower the Charges Officer to investigate complaints; rather, his role is to evaluate their merits and attempt an informal resolution of them (e.g., through discussion with the principles, the relevant chair and dean, and the like — which the Officer chose not to pursue in this case). Past such efforts, however, the FCoC describes a clear set of procedures and associated responsibilities: if a complaint is sufficiently serious, and informal measure do not succeed in resolving the matter, the Charges Officer can request the formation of an ad hoc committee. It is this committee that is specifically charged with investigating the charges or complaints. See Campus Procedures for the Enforcement of the FCoC, pg. 3, Charges Committee Procedures.

Despite the clear delineation of responsibilities contained in these procedures, the Charges Officer has conducted a covert investigation that came to include his monitoring of communications between members of the Sociology Department as a whole. Apparently based on charges made by students regarding a single e-mail sent to a class list, the Charges Officer took it upon himself to monitor communication on an entirely different Sociology e-mail list serve. After I objected to his monitoring of the list serve, Prof. Scharelmann sent me the following letter to explain his actions. Here is the entire letter:

Prof. Raymond,

I’ve just learned that there is some unhappiness that I signed up on the Sociology Department’s listserve socforum some weeks ago. The background is this: a principal in a complaint I received as Charges Officer identified socforum as highly relevant in explaining the events that had led to the complaint. I’d never heard of socforum and I felt it could be helpful in understanding what happened (perhaps even in informally resolving the complaint) if I understood what socforum was. So I signed up for it, thinking it was an open campus resource that anybody could look at. There seemed to be no problem doing this, even though I was not in the Sociology Department. I certainly did not expect to see anything confidential or even personal and I didn’t (except for maybe my nearby neighbor Tom Scheff’s garage sale?). [sic] I thought some of the articles quoted were quite interesting and I saw no reason to unsubscribe.

Certainly if even some of the users of the forum would feel more comfortable if I unsubscribed I’m happy to do so and will. And I apologize for any concern my subscribing may have raised in the Sociology Department.

Incidentally, about a month ago I ran into Tom Scheff at the Farmer’s Market (I think) and he went out of his way to ASK me to join a Soc. Dept. listserv, since there was something about an upcoming demonstration discussed there. I asked him if he meant socforum, because I was already a member. He told me it was a different listserv and I should email him to get the name. I didn’t pursue it, but the point is that nothing about the conversation suggested any concern about socforum being private, indeed it suggested just the opposite.

Sincerely,

Martin Scharlemann

Although, Professor Scharlemann evidently feels justified in having investigated soc forum. I would note that the Charges Officer cannot possibly learn about the context of e-mail communications sent to a classroom by viewing (1) posts sent to an entirely different list, (2) especially when those mails are sent after a complaint has been filed (since the relevant context would be limited to mails sent before the e-mail in question, subsequent postings being potentially compromised by the investigation itself). Therefore, it is difficult to accept the Charges Officer’s rationale for his snooping. Further, in his mail Professor Scharlemann uses two well-known devices for deflecting attention from serious deficiencies in one’s own actions: (1) He conflates his personal views and relations (e.g., with a member of the department) with his conduct as the Charges Officer; and (2) he consistently muddles the sequence of events, using subsequent events to justify prior actions.

If we take care to keep such matters straight, the truly ominous character of his actions are apparent. Specifically his conduct entailed (1) an apparent instance of deception by omission (i.e., withholding information that a recipient might find of immediate significance) in joining the list, and (2) a dramatic overstepping of his mandate as Charges Officer.

My concern begins and ends with (1) the basis of his interest in soc forum and (2) the manner in which he joined it. As he notes in his mail to me, he became aware of, and interested in, soc forum after a complaint was filed with him (as Charges Officer) against a member of the Sociology Department. As a consequence, his interest in the content of the discussions on Soc Forum had nothing to do with garage sales, or any other matter; it arose entirely and completely from his official position as the Charges Officer. Despite this fact, when he asked to join the list he never identified himself as Charges Officer to the staff member he contacted, and neither did he convey that his interest in joining the forum arose from his effort to “investigate” charges filed against one of our members. Evidently the Charges Officer has engaged in a covert effort to snoop on (aspects of) the department’s communications. Whether he subsequently found the material on soc forum interesting or trivial has no bearing on his initial decision to join the list – nor does any subsequent invitation by an emeritus faculty member to join a different forum.

The Charges Officer’s actions are troubling on a number of levels:

A. The Charges Officer apparently omitted relevant facts in asking to join the list serve. His apparent deception in joining the list does not depend on what he expected to find, or did find, (or whether he is really a good person, or one with progressive or conservative political leanings, or anything else); the apparent deception by omission in this case arises from the mismatch between the actual basis for his joining the list (as Charges Officer investigating a charge), and his decision to omit those facts when he contacted a staff member to request being added to the list. The Charges Officer’s attempt to excuse his conduct should be rejected: it is a violation of basic ethical principles (not to mention logic) to use deception to accomplish an outcome (i.e., joining a list serve by concealing the basis for his interest in it), and then reported the outcome of that deception as a basis for justifying the legitimacy of those actions (as in his claim, there “seemed to be no problem [joining the list]”).

B. In addition to his apparent deception in joining the list, the Charges Officer seriously overstepped his mandate: a complaint against one member of a department cannot justify the wholesale, prospective monitoring of all of its members — even on an open forum. If he wished to gather materials about what is or has been presented on the list serve, he could have identified himself as Charges Officer and asked the Chair (or relevant staff person) for archives or sample mailings that had been properly stripped of identifying information. By choosing the course he did, the Charges Officer dramatically overstepped his role as Charges Officer, and compromised the entire process.

C. The actions of the Charges Officer reflect a fundamental incapacity to appreciate the position to which he has been appointed: it is deeply troubling that the person the Academic Senate has charged with protecting academic freedom – the Charges Officer — cannot appreciate how ominous it might appear to faculty and students that he decided to monitor their e-mail communications at the very point in time that he was forming an ad hoc committee to pursue charges against one of its members based on his e-mail communication. To reiterate, his assessments of the content of the list serve (e.g., that he “liked some of the articles”) or any other conduct-after-the-fact does not justify or excuse the manner in which he came to join the list in the first place – or his casual defense of that egregious conduct once it became public. In fact none of the excuses he offers diminish — in any way — his responsibility as a faculty member, and especially as Charges Officer, to conduct himself in a manner that protects academic freedom.

4. Conclusions

In my view, the Charges Officer’s (1) departures from the procedure he is mandated to follow in the faculty code of conduct, (2) his failure to respect the rights of the accused as they are described in the FCoC and (3) his dramatic and ominous attempt to gather information regarding the conduct of the entire Department of Sociology raises serious questions about his conduct in this case. It is worth making explicit that the irregularities
in the procedures adopted by the Charges Officer identified in this memo are systematically biased against the accused faculty member; as a consequence these cannot be excused as instances of mere sloppiness and neither can they be attributed to his efforts to find an “informal resolution” to the complaint (especially since none was even attempted). Now that the CoC has been made aware of the Charges Officer’s repeated
failures to fulfill the mandate given to him by the Academic Senate, the University and its faculty would be well served if the CoC (1) replaced the Charges Officer in this case and (2) began the process anew. This would allow the faculty member in question a legitimate opportunity to offer a defense should that be necessary, and for a more informal resolution to be pursued (e.g., through the Chair and Dean). Such an action would not prevent the case from ultimately being referred to an ad hoc committee should these alternative fail or fall short. The current process is so thoroughly tainted by the Charges Officer’s ill-considered conduct, however, that it cannot be permitted to proceed further without the CoC becoming complicit in these irregularities. In addition, the continuation of these proceedings after campus officials have been made aware of the
number of serious problems with them places the interests of the University at risk should the matter result in a lawsuit.

With best wishes,
Geoffrey Raymond
Associate Professor of Sociology

Appendix 1:Rules Governing the Formation of an Ad Hoc Charges Committee
If the CoC decides to proceed with the formation of an ad hoc committee despite my strong recommendation against this course of action, I would remind the members of the Charges Officer’s limited role in subsequent steps. As the Campus Procedures for the Enforcement of the Faculty Code of Conduct states (pg. 2; emphasis added):

“The second stage in the initiation of formal procedures shall be the formation of an ad hoc Charges Committee. To this end, the Charges Officer shall request the Academic Senate Divisional Committee on Committees to form such a committee consisting of at least three members. The Committee on Committees shall consult with the Charges Officer on the composition of the ad hoc committee. The purpose of this consultation is
to ensure that the Committee on Committees excludes from the ad hoc committee those who are members of the same department as one or other of the parties to the complaint, and those who may be in some other way prejudiced. In order to advise the Committee on Committees on the selection of an unprejudiced ad hoc committee, the Charges Officer shall consult, if it is prudent to do so, with the complainant or the faculty
member complained against, or both. The committee shall be formed expeditiously; the Charges Officer shall not be a member of the committee.

Let me emphasize three basic (and obvious) points here:

1. The CoC names and appoints the committee, not the charges Officer;
2. The Charges Officer – and the CoC — are required to exclude members who may be prejudiced in some way. Given the facts in this case, any person that cannot distinguish between anti-Semitism and legitimate criticism of Israeli government’s policies and procedures in the Gaza should be excluded from the committee;
3. The Charges Officer shall not be a member of the committee.

Finally, my reading of this is that the Charges Officer’s role in forming the committee is limited to (a) requesting it be formed and (b) ensuring that its members are not prejudiced in some way. I would encourage the members of the CoC to strenuously limit his participation to these matters alone (i.e., he should not be allowed to recommend any person to the committee insofar as this would violate the basic intent of the procedures,
which is to have two entirely separate entities review the complaints and associated materials).

Appendix 2: Charges by students, and by Professor Scharlemann.
[Note the accused faculty member has already made all of these charges public.]

Here is the exact list of charges presented by students 1 and 2.

Student 1:
Part I – Professional Rights of Faculty

2. The right to present controversial material relevant to a course of instruction;

Part II – Professional Responsibilities, Ethical Principles, and Unacceptable Faculty Conduct
The integrity of the faculty-student relationship is the foundation of the University’s educational mission. This relationship vests considerable trust in the faculty member, who, in turn, bears authority and accountability as mentor, educator, and evaluator. The unequal institutional power inherent in this relationship heightens the vulnerability of the student and the potential for coercion. The pedagogical relationship between faculty
member and student must be protected from influences or activities that can interfere with learning consistent with the goals and ideals of the University. Whenever a faculty member is responsible for academic supervision of a student, a personal relationship between them of a romantic or sexual nature, even if consensual, is inappropriate. Any such relationship jeopardizes the integrity of the educational process.

1. Failure to meet the responsibilities of instruction, including:
(b) Significant intrusion of material unrelated to the course

2. Discrimination, including harassment, against a student on political grounds, or for reasons of race, religion, sex, sexual orientation, ethnic origin, national origin, ancestry, marital status, medical condition, status as a covered veteran, or, within the limits imposed by law or University regulations, because of age or citizenship or for other arbitrary or personal reasons.

5. Participating in or deliberately abetting disruption, interference, or intimidation in the classroom.

B. Scholarship

Violation of canons of intellectual honesty, such as research misconduct and/or intentional misappropriation of the writings, research, and findings of others.

C. The University

3. Unauthorized use of University resources or facilities on a significant scale for personal, commercial, political, or religious purposes.

E. The Community
Ethical Principles. “Faculty members have the same rights and obligations as all citizens. They are as free as other citizens to express their views and to participate in the political processes of the community. When they act or speak in their personal and private capacities, they should avoid deliberately creating the impression that they represent the University.” (U.C. Academic Council Statement, 1971)

Student 2:
1. Failure to meet the responsibilities of instruction, including:
(b) Significant intrusion of material unrelated to the course

5. Participating in or deliberately abetting disruption, interference, or intimidation in the classroom.

3. Unauthorized use of University resources or facilities on a significant scale for personal, commercial, political, or religious purposes.

“Faculty members have the same rights and obligations as all citizens. They are as free as other citizens to express their views and to participate in the political processes of the community. When they act or speak in their personal and private capacities, they should avoid deliberately creating the impression that they represent the University.” (U.C. Academic Council Statement, 1971)

“Allegations” by the Charges Officer, Professor Scharlemann (as forwarded to me by the accused professor)

Responding to your memo of 3 April, here is a summary of the allegations:
* You, as professor of an academic course, sent to each student enrolled in that course a highly partisan email accompanied by lurid photographs.
* The email was unexpected and without educational context.
* You offered no explanation of how the material related to the content of the course.
* You offered no avenue to discuss, nor encouraged any response, to the opinions and photographs included in the email.
* You directly told a student who inquired that the email was not connected to the course.
* As a result, two enrolled students were too distraught to continue with the course.
* The constellation of allegations listed above, if substantially true, may violate the Faculty Code of Conduct. In the (“not exhaustive”) list of examples included with that Faculty Code of Conduct, the most proximate are part II, A. 1. b and A. 4.

[II, A. 1.b is “Significant intrusion of material unrelated to the course”; A. 4. is “Use of the position or powers of a faculty member to coerce the judgment or conscience of a student or to cause harm to a student for arbitrary or personal reasons”]